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United States v. Galan

United States District Court, D. Oregon

July 11, 2014



ANN AIKEN, District Judge.

On April 17, 2014, defendant was sentenced to sixty-three months imprisonment for the distribution of child pornography and the possession with intent to distribute child pornography in violation of 18 U.S.C. §§ 2252(a) and 2252A. The government also sought restitution for "Cindy" and "John Doe IV, " two identified victims.See id. § 2259 (a) ("the court shall order restitution for any offense under this chapter").

I granted the government's request to stay restitution until resolution of a case pending before the United States Supreme Court involving the appropriate causation standard required to allow restitution awards in child pornography cases. See Paroline v. United States , 134 S.Ct. 1710 (2014). On April 23, 2014, the Court issued its decision inParoline; after the submission of briefing by both parties, I heard oral argument on


The operative restitution statute, 18 u.s.c. § 2259, provides that "the court shall order restitution for any offense under this chapter" and "shall direct the defendant to pay the victim... the full amount of the victim's losses." 18 U.S.C. § 2259 (a), (b) (1) (emphasis added).[1] Thus, restitution is mandatory for child pornography offenses.

Prior toParoline, there was a Circuit split regarding the causal relationship required to award restitution in a child pornography case. The Ninth Circuit, along with most others, had held that § 2259 requires the government to establish proximate causation; i.e., "a causal connection between the defendant's offense conduct and the victim's specific losses." United States v. Kennedy , 643 F.3d 1251, 1262 (9th Cir. 2011);see also Paroline , 134 S.Ct. at 1719 (citing cases). However, the Fifth Circuit had "held that § 2259 did not limit restitution to losses proximately caused by the defendant, and each defendant who possessed the victim's images should be made liable for the victim's entire losses from the trade in her images, even though other offenders played a role in causing those losses." Paroline , 134 S.Ct. at 1718 (summarizing and citing In re Amy Unknown , 701 F.3d 749, 772-74 (5th Cir. 2012) (en bane)).

In Paroline, the Supreme Court vacated the decision of the Fifth Circuit and rejected the argument that a defendant convicted of possessing child pornography could be held liable for the full amount of a victim's losses. Instead, the Supreme Court imposed a standard of proximate causation: "Restitution is therefore proper under § 2259 only to the extent the defendant's offense proximately caused a victim's losses."Id. at 1722. At the same time, the Court disavowed a strict, "but-for" causation standard; reasoning that the purposes of § 2259, the unique harm suffered by child pornography victims, and the "atypical causal process" underlying the victims' losses supported the adoption of principles underlying the government's "aggregate causation" theory and a more flexible causation approach. Id . at 1723-24.

The Court stated:

It would be anomalous to turn away a person harmed by the combined acts of many wrongdoers simply because none of those wrongdoers alone caused the harm. And it would be nonsensical to adopt a rule whereby individuals hurt by the combined wrongful acts of many (and thus in many instances hurt more badly than otherwise) would have no redress, whereas individuals hurt by the acts of one person alone would have a remedy. Those are the principles that underlie the various aggregate causation tests the victim and the Government cite, and they are sound principles.

Id. at 1724; see also id. at 1726 (reiterating that "aggregate causation theories" are not "irrelevant" in determining restitution). Ultimately, the Court held that a district court should order restitution "in an amount that comports with the defendant's relative role in the causal process that underlies the victim's general losses."Id. at 1727.

At the outset, I agree with a recurring theme trumpeted by the dissent inParoline; that "full" restitution for child pornography victims cries out for a legislative, rather than judicial, solution.See 134 S.Ct. at 1730-35 (Roberts, C.J., dissenting). The harm caused by the distribution and possession of child pornography cannot be understated; such conduct promotes and sustains the "market" created and manipulated by voyeuristic "consumers" of child sexual abuse and torture, and it contributes to the continuing abuse of children. As the Court recognized inParoline:

It is common ground that the victim suffers continuing and grievous harm as a result of her knowledge that a large, indeterminate number of individuals have viewed and will in the future view images of the sexual abuse she endured. Harms of this sort are a major reason why child pornography is outlawed. The unlawful conduct of everyone who reproduces, distributes, or possesses the images of the victim's abuse - including Paroline - plays a part in sustaining and aggravating this tragedy.

Id. at 1726 (citations omitted).

At the same time, the general principles of restitution imported into § 2259 are difficult to apply in child pornography cases, as they do not "account [] for the diffuse harm suffered by victims of child pornography."Id. at 1733 (Roberts, C.J., dissenting). In resolving this conflict, the Court approved a flexible causation standard tied to "the defendant's relative role in the causal process" rather than leave victims ...

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